What’s happening during the reasonableness interregnum?
Inspired by a question from a practitioner, I am wondering how federal district and circuit courts around the country are dealing with post-Booker sentencing issues as everyone gears up for the Supreme Court’s work in Claiborne and Rita (lots of background here). It is fair to assume that SCOTUS took up these cases to disrupt the current status quo of reasonableness review, particularly the circuits’ suspect tendency to reverse nearly all below-guideline sentences appealed by the government and to affirm virtually all within-guideline sentences appealed by defendants (ugly patterns noted here). And yet, the status quo is the prevailing law until the Supreme Court says otherwise.
Claiborne and Rita are not scheduled to be argued until late February, and I doubt we will see a decision from the Court until probably June. And, in the meantime, tens of thousands of sentences need to be imposed by district courts, and thousands are subject to review in the circuits. Will resolution of many cases (particularly the hard ones) be slowed down as we anticipate rulings in Claiborne and Rita? Will there have to be hundreds, perhaps thousands, of resentencings no matter what is said in Claiborne and Rita.
Folks struggling with these issues “on the ground” are highly encouraged to use the comments to report what they are seeing (or what they think should be happening).